This column has formerly joined the common prognostication about what the introduction of the Supreme Court’s new majority may possibly signify for the evolution of the regulation. See Anello and Albert, “Implications of a Much more Conservative Supreme Court docket for White-Collar Practitioners,” New York Law Journal (Oct. 8, 2020). Though it is far too early to render judgment, the court’s June 3, 2021 selection in Van Buren v. United States, 141 S. Ct. 1648 (2021), just one of Justice Amy Coney Barrett’s very first majority views and her initially addressing felony legislation as a member of the court, presents some clues. In narrowly construing a provision of the Computer Fraud and Abuse Act of 1986 (CFAA) to stay clear of criminalizing “a breathtaking volume of commonplace computer exercise,” Justice Barrett’s view probably will be welcomed by individuals anxious about overcriminalization and untethered prosecutorial discretion in the federal procedure.
Indeed, the Van Buren choice properly matches into a pattern of the court’s contemporary prison regulation jurisprudence that, whilst purporting to use only conventional applications of statutory interpretation and to eschew plan judgments, nevertheless appears inspired by issues about the at any time-growing access and severity of federal criminal law. Over the earlier 10 years, the Supreme Court more and more has questioned the Justice Department’s wide interpretations of various prison statutes and their application to novel factual scenarios outdoors the perceived heartland of conduct at which the legal guidelines ended up aimed. Whilst in certain occasions the court docket has tackled the overbreadth issue directly—for illustration, holding that the Armed Career Legal Act’s “residual clause” was void-for-vagueness in Johnson v. United States, 576 U.S. 591 (2015)—more generally, the court docket normally takes a subtler technique of adopting much less-than-apparent narrow interpretations of legal statutes that look broadly penned. Even so, the courtroom recommendations its hand by injecting into its mix of textualist applications policy arguments about the absurd penalties that could final result from the broad interpretations urged by the govt. In fact, 1 vital thread that runs through these choices is the court’s disavowal of the notion that “prosecutorial discretion” delivers any meaningful examine on the excessive breadth of felony statutes.